Thoughts on culture and events by author and illustrator Christopher R Taylor

Friday, July 22, 2011

DESTROYING NON EVIDENCE

"I don’t have any sympathy for child pornography consumers or producers, but I don’t have much sympathy for the Justice Department and their three felony a day regimen from overbroad congressional statutes either. "

Its illegal in the United States to lie to a federal law enforcement officer. While I'm sure this makes their job easier, I am frankly amazed anyone even attempted to write such a law, given the protections of free speech in America and the suspicion of government inherent in the American people.

Lying to the police is practically considered a god-given right to Americans, and yet you can be tried, convicted, and throw in prison for lying to an FBI investigator, and I've never yet been able to get over that fact. I can see how federal cops would like this law, and I can understand the frustration that having to put up with lies while you are digging to find the truth would cause. It is, however, the limitations on law enforcement that help maintain justice, not its powers. Without limitations, we'd have significantly less actual justice because they would become ever more powerful and enforce ever more limitations on your liberty in the name of stopping crime.

Which brings us to an odd case I read about on the Volokh Conspiracy. Here's the basics: a man was being investigated for child porn, he found out about it, and destroyed his hard drive. Literally, he took a magnet to it, then hammered it to pieces, and threw it out the window bit by bit as he drove down the street. Computer forensics are really impressive but even Abby Sciuto couldn't read that drive.

Thus denied of much of their evidence (they still had ISP records of his downloads), the feds were unable to continue their child porn case.

So they busted him for destroying evidence. Before it legally was evidence. They based this trick on a clause in the Sarbanes-Oxley legislation, which prohibits companies from destroying materials that investigators might need for examining their records, 18 U.S.C. 1519:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

As Orrin Kerr notes, this attempt was attacked in various ways by the defendant's lawyers, not the least of which is that Sarbanes-Oxley clearly and in context was about financial records, not personal computer files. They were shot down in every case by the courts who wanted to nail this sick pervert. I say that because this guy was clearly guilty; he didn't destroy the hard drive because he was afraid they'd find his collection of Smurf cartoons.

Look, I get that this is kind of how they got Capone; they couldn't get people to testify and they couldn't get evidence of all his murders, corruption, bribes, racketeering, prostitution, smuggling and so on. They nailed him on tax evasion. That's fine, but he actually was breaking a specific and clear law with evading taxes.

Taking a piece of a law about one topic then tacking it onto another topic just is legal trickery and it strikes me as incredibly suspect and very unlikely to survive appeal. Its one thing to presume the duty of all citizens to not hinder police investigations but are they under any compulsion to assist? I get that its bad to try to hide evidence, but this wasn't even evidence yet. See, Sarbanes-Oxley doesn't have to be evidence, just something the feds are interested in looking at.

The feds sent a card (reading “Child Pornography Team Leader”) to his house telling him they'd be dropping by so he destroyed his hard drive. Look, maybe you shouldn't, I don't know, warn the suspect before you show up to investigate? Wouldn't that be a better approach? This strikes me as someone trying to cover their hind end rather than any genuine legal effort.

They messed up by giving him plenty of time to do his job - maybe they were hoping he'd just delete the drive so they could pull the data off and use his actions as evidence of guilt, but this just was silly, and dragging some obscure part of another law to try to cover this just smells bad to me.